STANDARD TERMS FOR PUBLISHERS
(“STANDARD TERMS”)
1. JOINING THE NETWORK
1.1 By submitting an Application Form, or by accessing the Interface, the Person named in the Application Form (the “Publisher”) is offering to participate in the Network, and market Advertisers and their Products, in accordance with the Application Form and these Standard Terms. By submitting an Application Form, the Publisher is also agreeing to the terms of Click Converter Ltd’s privacy policy, which can be found here.
1.2 Acceptance of the Application Form is
subject to the sole discretion of Clicks Converter Ltd (Clicks Converter) Kemp
House, 152-160 City Road, London, EC1V 2NX, United Kingdom, incorporated in
England and Wales with company number 12222610. Acceptance or rejection of the
Application Form will be notified to the proposed Publisher by email.
1.3 On acceptance of the Application Form by Clicks
Converter, the Application Form and these Standard Terms will
together constitute a legally binding “Agreement” entered into by Clicks
Converter and the Publisher. On rejection of the Application Form, no agreement
will be formed.
1.4 The Publisher is the operator of a
website, application or service (including email service), or is a Subnetwork.
By entering this Agreement with Clicks Converter, the Publisher will join the
Network to market Advertisers or their Products.
1.5 This Agreement prevails over any terms
supplied by the Publisher.
1.6 Any individual contracting on his or her
own behalf warrants that he or she is aged 18 or over. Any individual
completing the Application Form on behalf of a proposed Publisher
warrants that he or she has all necessary authority to bind that proposed
Publisher.
2. DEFINITIONS
2.1 The following definitions and rules of interpretation apply in this Agreement:
” Action ” means a Sale, Lead, Click, Ad Impression, or other
event, that has been specified as eligible for remuneration by the respective
Advertiser under its Program Terms, on which commissions may be based under
this Agreement;
” Ad Impression ” means a display of an advertisement of an Advertiser by the Publisher, as reported by the Tracking Code only;
” Advertiser ” means a Person which has agreed with Clicks Converter to
join the Network to be marketed, and/or to have its Products marketed;
” Advertiser Materials ” means any trade marks, advertising content,
images, text, video, data or other material provided by or on behalf of an
Advertiser to Clicks Converter, the Publisher or a Subpublisher;
” Advertiser Program ” means an ongoing affiliate marketing program
of an Advertiser on the Network, for the promotion of the Advertiser or its
Products in accordance with this Agreement and the Program Terms;
” Advertiser URLs ” means, from time to time, any websites, apps or
services of an Advertiser offering Products and to which the Publisher may
link;
” Advertising Standards ” means any applicable advertising laws,
regulations or standards, data laws relating to advertising (including the
Children’s Online Privacy Protection Act), including without limitation any FTC
Guidance, any generally accepted self-regulatory codes of practice, and any
related guidance or best practice advice;
” Application Form ” means the registration form at
www.clicksconverter.com, or by which operators of websites, applications,
technologies or services apply to participate in the Network;
” Approved Lead ” means a Lead approved by an Advertiser in
accordance with clause 5;
” Approved Sale ” means a Sale approved by an Advertiser in
accordance with clause 5;
” Authorized User ” means an individual permitted to view, or view
and operate, the Publisher Account on behalf of the Publisher, by its
individual Authorized User Account, as set out in clause 3;
” Authorized User Account ” means the account of an individual on the
Interface, permitted to view, or view and operate, the Publisher Account on
behalf of the Publisher, as set out in clause 3;
” Clicks Converter ” means Clicks Converter Ltd of Kemp House,
152-160 City Road, London, EC1V 2NX, United Kingdom, incorporated in England
and Wales with company number 12222610;
” Bonus ” means an ad hoc payment to the Publisher by an Advertiser
in return for a specific promotion or other marketing activity;
” Business Day ” means a day other than a Saturday, Sunday or
national public holiday in England;
” Change of Control ” means a change in the beneficial ownership of
more than 50% of the issued share capital of a company or a change in the
majority of the Persons with legal power to direct or cause the
direction of the general management of a company;
” Click ” means the intentional and voluntary following of a Link by a Visitor as part of marketing services as reported by the Tracking Code only;
” Commission ” means the amount payable to the Publisher in return
for marketing an Advertiser and its Products, in accordance with that
Advertiser’s Program Terms;
” Confidential Information ” means any information disclosed by or
relating to a party, including: information arising during the Term of this
Agreement; information about a party’s business affairs; information about a
party’s operations, products or trade secrets; information about a party’s
technology (including any know-how and source code) and any derivatives of any
part of any of them and which (i) is marked or identified as confidential; or
(ii) would be regarded as confidential by a reasonable business person;
” CPA ” means a Commission earned per Approved Sale / Action;
“CPC” means a Commission earned per valid Click; “CPL”
means a Commission earned per Approved Lead; “CPI” means a commission
earned per mobile application Install and Open; “CPE” means
commission earned per mobile application Install, Open and Action;
” CPM ” means a Commission earned per one thousand Ad Impressions;
” Data Regulation ” means any applicable data protection, privacy or
similar laws that apply to data processed in connection with this Agreement,
including for EU citizens any regulations implementing the Data Protection
Directive 95/46/EC (the “Directive”) or GDPR (as applicable) or
Privacy and Electronic Communications Directive 2002/58/EC and for US citizens,
FTC Guidance, US state and federal legislation relating to data privacy and security;
” Effective Date ” means the date of acceptance of the Application
Form by Clicks Converter;
” FTC Guidance ” means the published cases and guidelines from the
United States Federal Trade Commission, including without limitation the
guidance on substantiation of claims, privacy, data security, native
advertising and disclosure guidance for influencers and spokespeople.
” GDPR ” means the EU General Data Protection Regulation
2016/679.
” Group Company ” means any holding company or subsidiary of a party
or any of its holding companies. A company is a “subsidiary” of
another company, its “holding company”, if that other company (i)
holds a majority of the voting rights in it, or (ii) is a member of it and has
the right to appoint or remove a majority of its board of directors, (iii) or
is a member of it and controls alone, pursuant to an agreement with other
members, a majority of the voting rights in it;
” Intellectual Property Rights ” means all copyrights and related
rights, patents rights to inventions, utility models trademarks, service marks,
trade, business and domain names, rights in trade dress or get-up, rights in
goodwill or to sue for passing off, unfair competition rights, rights in
designs, rights in computer software, database rights (including any database
rights in the Network), topography rights, moral rights, rights in confidential
information (including know- how and trade secrets) and any other intellectual
property rights, in each case whether registered or unregistered and including
all applications for and renewals or extensions of such rights, and all similar
or equivalent rights or forms of protection in any part of the world;
” Interface ” means the software platform operated by Clicks Converter, to provide the Services and any functionality accessed or made available through such platform;
” Lead ” means a ‘sales lead’ of an Advertiser generated in the
Tracking Period, as reported by the Tracking Code only;
” Link ” means a hyperlink from a Promotional Space to an Advertiser
URL;
“Network” means the marketing network of publishers and advertisers
operated by Clicks Converter to facilitate, amongst other things, affiliate and
performance marketing;
” Product ” means a product, service or equivalent offered by an
Advertiser on any Advertiser URL;
” Program Terms ” means any terms and conditions, or other
requirements applied by an Advertiser to the participation in its Advertiser
Program;
” Promotional Space ” means any advertising inventory appearing on
the Publisher Service, or means of delivering Advertiser Materials
enabled by the Publisher Service;
” Publisher Account ” means the respective account of the Publisher
on the Interface;
” Publisher Service ” means a website, application or service
operated by the Publisher capable of marketing Advertisers and their respective
Products;
” Owner ” means a single Authorized User with full access to, and
control of, the Publisher Account and which is at all times authorized to act
on behalf of the Publisher and bind the Publisher;
” Sale ” means the agreed purchase of a Product by a Visitor in the
Tracking Period, as reported by the Tracking Code only;
” Services ” means the services or assistance provided by Clicks
Converter under this Agreement;
” Subpublisher ” means the operator of a website, application or
service, which has agreed with the Subnetwork to market advertisers or their
products;
” Subnetwork ” means the operator of a marketing network of further
publishers to facilitate, amongst other things, affiliate and performance
marketing, which has entered this Agreement to join the Network to market
advertisers or their products as a Publisher;
” Subprocessor ” any person (excluding an employee of either party)
appointed by or on behalf of either party to Process Personal Data on behalf of
such party or otherwise in connection with this Agreement.
” Suspension ” means the suspension by Clicks Converter of the
provision of the Services to the Publisher for a period of time, including the
following:(i) preventing the Publisher from accessing the Interface; (ii)
withholding payments otherwise due to the Publisher; (iii) ceasing to track
Actions; (iv) removing any Advertiser Materials from the Publisher Service and
“Suspend” shall be interpreted accordingly;
“Term” means the term of this Agreement from the Effective Date until
its termination or expiry in accordance with clause 14 or 17.4;
” Tracking Code ” means the Clicks Converter software code (from time to time) for the recording of, amongst other things, web traffic and Actions;
” Tracking Period ” means the period of time in which the Actions of
a Visitor are attributed to the Publisher and, subject to the Program Terms,
generate Commissions for the Publisher;
” Validation Period ” means the period of time during which
Advertisers may approve or decline Sales and Leads; and
” Visitor ” means any Person who follows a Link.
2.2 In this Agreement:
2.2.1 any meanings given to terms in the
attached Application Form shall apply to these Standard Terms;
2.2.2 the terms “Data
Controller”, “Data Processor”, “Data Subject”,
“Personal Data”, “Personal Data Breach”,
“Process” and “Processing” have the
meanings given to them in GDPR;
2.2.3 “include” or
“including” is without limitation;
2.2.4 the singular will include reference to
the plural and vice versa;
2.2.5 a “Person”
includes an individual, company, partnership or unincorporated
association;
2.2.6 a statute, order, regulation
or other similar instrument will include any amendments to it or
replacements of it; and
2.2.7 “writing” and
“written” includes emails but not faxes.
2.3 If there is a conflict between the
Application Form and the Standard Terms, the Application Form shall prevail.
3. PROVISION AND USE OF THE SERVICE AND THE INTERFACE
3.1 Subject to the Publisher’s compliance with
this Agreement, Clicks Converter will provide to the Publisher:
3.1.1 the Services; and
3.1.2 access to the Interface.
3.2 Clicks Converter may change any aspect of
the Interface at its sole discretion.
3.3 On the Effective Date, the Publisher
shall:
3.3.1 register a Publisher Account; and
3.3.2 nominate an Authorized User as Owner of
that Publisher Account.
3.4 Each Publisher Account may have only
one Owner, and must have an Owner at all times. Each Publisher
Account may have a reasonable number of Authorized Users.
3.5 The Owner may assign its Owner status to
another Authorized User via the Interface at any time.
3.6 To the extent enabled by the Interface, Authorized Users shall be allocated permissions to view, or view and operate, the Publisher Account by the Owner, acting on behalf of the Publisher. Authorized Users may, on behalf of the Publisher, also allocate permissions to view, or view and operate, the Publisher Account, provided that no Authorized User may grant greater permissions than they themselves hold. The Owner may, at any time, withdraw the permission of any Authorized User to view and/or operate the Publisher Account.
3.7 The Publisher undertakes that:
3.7.1 the Owner, shall remain authorized to
act on behalf of the Publisher and bind the Publisher;
3.7.2 all Authorized Users are permitted to
view, or view and operate, the Publisher Account in accordance with any
permissions granted on the Interface, which shall be kept up to date by the
Publisher;
3.7.3 it shall use
best endeavours to ensure that the Owner and all Authorized Users
shall:
(a) access the Interface in their own name under their own Authorized User
Account; and
(b) keep any passwords confidential.
3.8 The Publisher shall:
3.8.1 ensure the proper functioning and
maintenance of all Links;
3.8.2 provide Advertisers and Clicks Converter
with full and clear instructions as to the Advertiser Material it may
reasonably require for the purposes of the promotion of an Advertiser or its
Products in accordance with this Agreement and the Program Terms;
3.8.3 provide Advertisers reasonable access to
information the Advertiser may require to operate the Advertiser Program; and
3.8.4 remain primarily liable for the acts and
omissions of all Subpublishers.
3.9 Clicks Converter shall not be liable for
any losses or damages suffered by the Publisher due to the disclosure of any
Authorized User Account passwords.
3.10 The Publisher shall remain primarily
responsible and liable for all activities occurring under any of the Authorized
User Accounts and the acts or omissions of any Authorized User.
3.11 If the Publisher suspects that a third
party has gained unauthorized access to access data, the Publisher shall inform
Clicks Converter immediately by sending an e-mail to info@clicksconverter.com
or such other e-mail as may be notified to the Published from time to time.
3.12 Clicks Converter may Suspend or withdraw
any Authorized User Accounts at its discretion, or on request by the Publisher.
3.13 Under this Agreement, Clicks Converter:
3.13.1 provide any aspect of the Services or
the Interface (including the granting of sublicenses and licenses under clause
10);
3.13.2 enjoy any benefit, or exercise any
right;
3.13.3 satisfy any of Clicks Converter’s obligations.
4. MARKETING
4.1 The Publisher may request to market
Advertisers or their Products at their discretion by applying to participate in
the Advertiser Program. Advertisers may approve or refuse such requests at
their discretion. The Publisher may only market an Advertiser or its Products
under this Agreement with the Advertiser’s continued approval, unless
specifically enabled by the proper use of the Interface.
4.2 Advertisers may apply Program Terms at
their discretion, which shall become effective on notice to the Publisher,
including by publication on the Interface. Advertisers may change their Program
Terms at any time. The Publisher is solely responsible for ensuring it is aware
of any changes to the Program Terms.
4.3 Subject to the Publisher’s compliance with
this Agreement and the Program Terms, and the continued approval of the
respective Advertiser, Clicks Converter will provide to the Publisher the
Advertiser Materials.
4.4 Clicks Converter, however, is not obliged
to review any Advertiser Material or check their legality or accuracy. A
Publisher admitted to the Advertiser Program may publish the Advertiser
Materials through its Publisher Service at its discretion and use them solely
to the extent permitted under this Agreement and the Program Terms.
4.5 Clicks Converter may deactivate any Links
on request of the respective Advertiser, or at its sole discretion.
4.6 The Publisher shall remove any Advertiser
Materials from the Publisher Service immediately on request of either the
Advertiser or Clicks Converter.
4.7 Clicks Converter will use
reasonable endeavours to procure that Advertisers comply with any
terms and conditions, or other requirements, applied by the Publisher to its
promotion of Advertisers or their Products.
5. TRACKING AND VALIDATION
5.1 The Tracking Code and Program Terms will
be on the sole bases for recording and determining Actions and
Commissions and for tracking. No other means of recording or determining
Actions or Commissions shall be used under this Agreement, notwithstanding any
agreement or arrangement between the Publisher and any Advertiser to the
contrary.
5.2 Sales and Leads will only be attributed to
the Publisher where the Tracking Code records that the Publisher was
responsible for the most recent referral of the Visitor to the Advertiser URL
prior to that Sale or Lead , unless expressly agreed otherwise
between the parties or specified otherwise by the Advertiser in the respective
Program Terms, and in each case subject to any communicated “cookie
hierarchy” or “commission hierarchy”.
5.3 Advertisers may approve or decline Sales
and Leads at their discretion, subject to the applicable Program Terms.
6. ACTIONS, COMMISSIONS AND BONUSES
6.1 The amount of any Commissions is as may be
displayed on the Interface. CPA Commissions in respect of Approved Sales will
be determined as either:
6.1.1 a percentage of the purchase price of
the Product(s) subject of the Approved Sale, as set out on the Interface; or
6.1.2 a fixed amount, irrespective of the
purchase price of the Product(s) subject of the Approved Sale, as set out on
the Interface.
6.2 Advertisers may change the amount of
Commission offered on notice to Publishers. Clicks Converter will use
reasonable endeavours to procure that Advertiser’s reductions of
the amount of Commissions offered shall take effect fifteen days
after notification.
6.3 Bonuses may be agreed by the Publisher and
Advertisers at their discretion and must be processed via the Interface.
6.4 Commissions and Bonuses shall only be due:
6.4.1 on receipt by Clicks Converter of the corresponding payment in respect of that Action from the Advertiser; and
6.4.2 in respect of Actions procured in
accordance with this Agreement and any applicable Program Terms.
6.5 Without prejudice to any other rights or
remedies of Clicks Converter, if Clicks Converter reasonably suspects that any
Commissions paid under this Agreement have been generated in breach of this
Agreement, Clicks Converter may set off or deduct the amount of such
Commissions from any future payments due to the Publisher or from any funds
held to the Publisher’s account from time to time (whether under this Agreement
or any other agreement between Clicks Converter and the Publisher). Such
deduction shall constitute a genuine pre-estimation of the loss suffered by Clicks
Converter as a result of the payment of such Commission in breach of this
Agreement.
7. INVOICING AND PAYMENTS
7.1 Clicks Converter will pay the Publisher:
7.1.1 Commissions in respect of each Approved
Sale, Approved Lead, Approved CPI, Approved CPE, Clicks or one thousand Ad
Impressions; and
7.1.2 Bonuses agreed between the Publisher and
Advertisers.
7.2 Payment of Commissions and Bonuses may be
subject to any Advertiser Terms.
7.3 Self-billing invoices for Commissions and
Bonuses can be accessed by the Publisher via the Interface. Self-billing will
be implemented as follows:
7.3.1 the Publisher agrees not to issue
invoices for any Commissions and Bonuses generated under this Agreement;
7.3.2 Clicks Converter may provide a copy of
this Agreement to HM Revenue & Customs (or equivalent local tax authority)
in order to evidence the self-billing arrangements between Clicks Converter and
the Publisher;
7.3.3 the Publisher will immediately notify Clicks
Converter if it transfers any part of its business as a going concern;
7.3.4 the Publisher will immediately notify Clicks
Converter if it:
(a) stops being registered for VAT; or
(b) changes VAT number, regardless of the reason;
7.3.5 Clicks Converter may engage third party
service providers to administer the issuing of self-billing invoices under this
Agreement.
7.4 Clicks Converter will pay all self-billed
invoices subject to:
7.4.1 any minimum payment thresholds
implemented by Clicks Converter from time to time being satisfied;
7.4.2 the correct, accurate and complete bank
and tax information of the Publisher being shown on the Interface;
7.4.3 the provision of any additional information reasonably requested by Clicks Converter in respect of the Publisher’s location or residence;
7.4.4 the payment not being subject to any
internal audits or ‘network quality’ reviews from time to time.
7.5 All payments will be made to the bank
account nominated by the Publisher. Clicks Converter is not obligated to take
steps to verify the accuracy of bank account information provided by the
Publisher. Updates to bank account information must be communicated to Clicks
Converter before commission payment/s.
7.6 All sums payable under this Agreement
shall be exclusive of VAT which, if applicable, shall be added at the
appropriate rate. VAT shall be paid by the Party liable to pay VAT pursuant to applicable
law. If payments under this Agreement are subject to withholding tax, Clicks
Converter is entitled to deduct the appropriate amount from payments to the
Publisher. The parties agree to work together on reducing any withholding tax,
and, upon request, shall provide documents required for any reduction,
exemption, reimbursement or deduction of withholding tax.
7.7 All amounts payable shall be paid in the
currency in which the respective Commissions are received from Advertisers. Any
costs of currency conversion or losses caused by exchange rate fluctuations
shall be borne by the Publisher.
7.8 The Publisher will immediately repay any
amounts paid to the Publisher in error, or other than in accordance with the
Publisher’s rights under this Agreement.
8. PUBLISHER’S RELATIONSHIP WITH ADVERTISERS
8.1 The Publisher’s participation in the
Network does not create any contract between the Publisher and any Advertiser.
8.2 During the term of this agreement the
Publisher will not, directly or indirectly, enter or attempt to enter into any
agreement, understanding or other form of arrangement (whether
express or implied) with any Advertiser without Clicks Converter’s prior
written approval.
9. WARRANTIES AND INDEMNITY
9.1 Each party warrants and undertakes to the
other for the Term that:
9.1.1 it has full power and authority to enter
into this Agreement;
9.1.2 it holds all licenses and approvals
necessary for the performance of its obligations under this Agreement;
9.1.3 it will perform its obligations under
this Agreement in accordance with all applicable laws
and using reasonable skill and care; and
9.1.4 it will not make any false, misleading
or disparaging representations or statements regarding the other party.
9.2 The Publisher warrants and undertakes to Clicks
Converter for the Term that:
9.2.1 neither the Publisher, nor any
of its officers or shareholders, have previously been party to an agreement
terminated by Clicks Converter for breach;
9.2.2 no officer or shareholder of the Publisher has been an officer or shareholder of a company (or other entity) party to an agreement terminated by Clicks Converter for breach;
9.2.3 all information about the Publisher set
out in the Application Form or on the Interface is complete, true, accurate,
not misleading and will be kept up to date;
9.2.4 its marketing of any Advertiser or
its Products will comply with all Advertising Standards and Data Regulation;
9.2.5 the Publisher Service will be operated
in accordance with all applicable laws (including Advertising Standards and
Data Regulation);
9.2.6 it shall comply with the Code of Conduct
at all times;
9.2.7 it shall comply with all relevant tax
laws;
9.2.8 it shall retain ultimate control of the
operation of the Publisher Service;
9.2.9 it is the owner or valid licensee of any
Intellectual Property Rights appearing on the Publisher Service, and that no
part of the Publisher Service infringes the rights of any third party; and
9.2.10 all Advertiser Materials will be
accurately and faithfully reproduced.
9.3 The Publisher will indemnify, defend and
hold harmless Clicks Converter (including its directors, employees, agents or
contractors), from and against any claims, costs, damages, losses, liabilities
and expenses (including legal fees) relating to any claims, actions, suits or
proceedings by third parties against Clicks Converter arising out of or related
in any way to any breach by the Publisher of any of the warranties at clauses
9.1 and 9.2.
10. INTELLECTUAL PROPERTY
10.1 Clicks Converter hereby grants to the
Publisher, for the duration of its participation in the Advertiser Program, a
revocable, non-exclusive, non-transferable, royalty-free, worldwide sublicense
to publish Advertiser Materials, without modification, on the Publisher Service
in the Promotional Spaces to the extent necessary to enable the Publisher to
market the respective Advertiser and its Products on the Network in compliance
with the Agreement and the Program Terms.
10.2 A sublicense granted to a Subnetwork
under clause 10.1 shall be further sub- licensable by the Subnetwork to
Subpublishers on terms equivalent to clause 10.1, with Clicks Converter’s prior
written consent.
10.3 A sublicense granted by a Subnetwork
under clause 10.2 shall not be capable of further sublicense by the
Subpublisher without Clicks Converter’s prior written consent.
10.4 Clicks Converter hereby grants to the
Publisher a revocable, non-exclusive, non-sub- licensable, non-transferable,
royalty-free worldwide license to use the Interface to the extent necessary for
the Publisher to participate in the Network and perform its obligations under
this Agreement.
10.5 The Publisher will not, and will not
attempt to, change, reverse engineer or create derivative works of the
Interface or the Tracking Code.
10.6 Each party reserves all of its right,
title and interest to any of its Intellectual Property Rights licensed under
this clause 10, or which it creates under this Agreement or which is created by
operation of the Tracking Code.
10.7 The Publisher shall use information and data obtained from and in connection with participating in the Network only for the purpose of this Agreement. Uses for any other purpose, or disclosure of such information and data are prohibited.
10.8 Either party may identify the other party
in lists of clients or customers, and may use the other party’s name
and logo in marketing materials and presentations. Any other use shall require
the prior written consent of the other party.
11. CONFIDENTIALITY
11.1 Each party will only use Confidential
Information to enjoy its rights or comply with its obligations under this
Agreement. Save as set out in this Agreement, neither party will disclose any
Confidential Information. Confidential Information shall be kept confidential.
11.2 The obligations of confidentiality in
this Agreement will not apply to Confidential Information to the extent it:
11.2.1 is in the public domain (other than as
a result of a breach of this Agreement);
11.2.2 can be demonstrated as having been
independently developed by the receiving party;
11.2.3 is published on the Interface in the
receipt or provision of the Services in accordance with this Agreement;
11.2.4 is required to be disclosed by law or a
court order.
11.3 This clause will survive termination for
five years.
12. DATA PROTECTION AND COOKIES
12.1 Clicks Converter and the Publisher will
comply with their respective obligations under Data Regulation. Each party will
provide the other party any co-operation reasonably requested to enable the
other party’s compliance with this clause 12.
12.2 In accordance with Data Regulation, the
Publisher will obtain the prior, freely given, specific informed, unambiguous
and revocable consent of any Visitors to any cookies served by Clicks Converter
Visitor as a result of a Click.
12.3 The Publisher will not provide any
Personal Data to Clicks Converter without Clicks Converter’s prior written
consent, unless as anticipated by Clicks Converter in its ordinary operation of
the Network.
12.4 In respect of any Processing under this
Agreement for which Clicks Converter and the Publisher are joint Controllers
(whether together, or with any Advertiser):
12.4.1 Each party will provide the other party
any co-operation reasonably requested to enable the other party’s compliance
with Data Regulation;
Transparency
12.4.2 The Publisher shall take appropriate
measures to provide Data Subjects with information about how Personal Data is
being processed by or on behalf of the Publisher, which shall at a minimum
include all the information required by Articles 13, 14 and 26 of the GDPR, in
a concise, transparent and easily accessible form, using clear and plain
language (” Publisher Fair Processing Notice “);
12.4.3 Clicks Converter shall take appropriate
measures to provide Data Subjects with information about how Personal Data is
being Processed by or on behalf of Clicks Converter, which shall at a minimum
include all the information required by Articles 13, 14 and 26 of the GDPR, in
a concise, transparent and easily accessible form, using clear and plain
language (“Clicks Converter Fair Processing Notice “);
12.4.4 The Publisher shall include a hyperlink
to the current Clicks Converter Fair Processing Notice in the Publisher Fair
Processing Notice;
Personnel
12.4.5 Each party shall take reasonable steps
to ensure the reliability of any employee, agent or contractor who may have
access to Personal Data, ensuring in each case that access is:
(a) strictly limited to those individuals who need to know and/or access the
relevant Personal Data; and
(b) as strictly necessary for the purposes of the Principal Agreement and to
comply with Data Regulation in the context of that individual’s duties.
12.4.6 Each party shall ensure that all
individuals referred to in Clause 12.4.5 are subject to confidentiality undertakings
or professional or statutory obligations of confidentiality.
Security and Confidentiality of Data
12.4.7 Each party shall in relation to the
Personal Data, implement appropriate technical
and organisational measures to ensure an appropriate level of
security, including, as appropriate, the measures referred to in Article 32(1)
of the GDPR. In doing so, each party shall take into account:
(a) the state of the art, the costs of implementation and the nature, scope,
context and purposes of Processing; and
(b) the risk of varying likelihood and severity for the rights and freedoms of
natural persons.
12.4.8 In assessing the appropriate level of
security, each party shall in particular take account of the risks that are
presented by Processing, including from accidental or unlawful destruction,
loss, alteration, unauthorised disclosure of, or access to Personal
Data transmitted, stored or otherwise Processed.
Subprocessors
12.4.9 With respect to a proposed
Subprocessor, each party shall:
(a) before the Subprocessor first Processes Personal Data, carry out adequate
due diligence to ensure that the Subprocessor is capable of providing the level
of protection for Personal Data required by applicable Data Regulation; and
(b) ensure that the arrangement with such a Subprocessor, is governed by a
written contract including terms meet the requirements of Article 28(3) of the
GDPR.12.4.9
Data Subject Rights
12.4.10 Each party
shall fulfil their obligations to respond to requests to exercise
Data Subject rights under the Data Regulation. Each party will provide the
other party any co-operation reasonably requested to enable the other party’s
compliance with this clause.
Personal Data Breach
12.4.11 Each party shall:
(a) notify the other party without
undue delay upon becoming aware of a Personal Data Breach affecting Personal
Data (“Network Data Breach”); and
(b) provide the other party with sufficient information to allow it to meet any
obligations to report or inform Data Subjects of the Network Data Breach under
or in connection with the Data Regulation;
(c) meaningfully consult with the other party in respect of the external
communications and public relations strategy related to the Network Data
Breach;
(d) subject to A12.4.11, not notify any data protection regulator of the
Network Data Breach without having obtained prior written approval of the other
party; and
(e) not issue a press release or communicate with any member of the press in
respect of the Network Data Breach, without having obtained prior written
approval by the other party.
12.4.12 The notification set out in Clause 12.4.11(a)
above, shall as a minimum:
(a) describe the nature of the Network Data Breach, the categories and numbers
of Data Subjects concerned, and the categories and numbers of Personal Data
records concerned;
(b) describe the likely consequences of the Network Data Breach; and
(c) describe the measures taken or proposed to be taken to address the Network
Data Breach.
12.4.13 The Publisher shall co-operate with Clicks
Converter and take such reasonable commercial steps as are directed by Clicks
Converter to assist in the investigation, mitigation and remediation
of each Network Data Breach.
Data Transfers
12.4.14 Neither party shall transfer Personal
Data to countries outside of the EEA in breach of applicable Data Regulation.
12.5 The Publisher warrants and undertakes for
the Term that:
12.5.1 any Processing under this Agreement,
undertaken by Clicks Converter or any Advertiser acting as a Data Processor on
behalf of the Publisher acting as a Data Controller, including any Processing
of Personal Data relating to the Publisher and any Authorized Users, complies
with Data Regulation;
12.5.2 it holds any rights or consents
necessary for the transfer outside of the EEA of Personal Data by Clicks
Converter or any Advertiser.
12.6 To the extent that Clicks Converter is a
Data Controller and the Publisher is a Data Processor, (or, as applicable, Clicks
Converter is a Data Processor and the Publisher is a Subprocessor) the
Publisher will:
12.6.1 Process Personal Data only Clicks
Converter’s documented instructions, including in respect of the deletion or
return of Personal Data;
12.6.2 assist Clicks Converter in all respect
necessary to enable or assist Clicks Converter to comply with Data Regulations;
12.6.3 make available to Clicks Converter all
requested information in respect of Personal Data, including, on at least 30
days prior written notice and during normal business hours, permitting Clicks
Converter or any relevant Advertiser, or any of their auditors or advisors, to
attend the Publisher’s premises in order to inspect the Publisher’s systems and
records to the extent determined by Clicks Converter or any relevant Advertiser
to be necessary to demonstrate the Publisher’s compliance with this clause 12;
and
12.6.4 comply with clauses 12.4.4, 12.4.5,
12.4.6, 12.4.7, 12.4.8, 12.4.9, 12.4.11, 12.4.12, 12.4.13 and 12.4.14.
12.7 The Publisher shall not use any reports generated by use of the Interface to create Visitor profiles, as defined under GDPR.
12.8 The Publisher will not do or omit to do
any act which may cause Clicks Converter to be in breach of any of its
obligations under the Data Regulation.
13. LIMITATION OF LIABILITY
13.1 This clause 13 sets out the entire
liability of Clicks Converter under or in connection with the Agreement.
13.2 Each party shall be liable for any
breaches of Data Regulation for which they are responsible and accordingly
there shall be no joint liability between the parties in respect of such
breaches.
13.3 Clicks Converter will not be liable for
any losses of the Publisher if Clicks Converter’s compliance with the Agreement
is prevented by the acts or omissions of the Publisher.
13.4 Clicks Converter will not be liable to
the Publisher for: loss of profit, business, goodwill, anticipated savings,
goods, contract, use or data; losses arising from the acts or omissions of an
Advertiser; or for any special, indirect, consequential or pure economic loss,
costs, damages, charges or expenses.
13.5 The total liability of Clicks Converter
in contract, tort (including negligence or breach of statutory duty),
misrepresentation, restitution or otherwise arising in connection with the
Agreement will be limited to the amount of Network Fee actually received by Clicks
Converter from Advertisers in respect of Commissions paid to the Publisher in
the 12 month period preceding the date on which the claim arose.
13.6 Except as expressly stated otherwise in
this Agreement, all warranties, conditions and other terms implied by statute
or common law are excluded to the fullest extent permitted by law.
13.7 The Network, the Interface, the Tracking
Code, the Services, their use and the results of such use are provided “as
is” to the fullest extent permitted by law. Clicks Converter disclaims all
express or implied warranties, including warranties of satisfactory quality and
fitness for a particular purpose, which may be implied in respect of the
Network, the Interface, the Tracking Code, the Services, their use and the
results of such use. The performance of the Network, the Tracking
Code and the Interface relies on third parties beyond Clicks
Converter’s control, and in particular, the maintenance by Advertisers of the
proper integration of the Tracking Code into Advertiser URLs. Clicks Converter
specifically disclaims any warranty:
13.8.1 that the use or operation of the
Network, the Interface or the Tracking Code will be uninterrupted or
error-free;
13.8.2 that the Tracking Code will be properly integrated into the Advertiser URLs;
13.8.3 that the Tracking Code accurately
records Actions at all times;
13.8.4 in respect of the Advertiser Materials,
including any warranty that the Advertiser Materials comply with Advertising
Standards;
13.8.5 that defects will be corrected;
13.8.6 that the Network, the Interface or the
Tracking Code are free of viruses or malicious code;
13.8.7 that any security methods employed will
be sufficient;
13.8.8 in respect of any Publisher or its
technology; and
13.8.9 regarding correctness, accuracy, or
reliability.
13.9 Clicks Converter shall only be held
liable in cases of intent or gross negligence of one of its legal
representatives, executives or other vicarious agents, in the event of any
culpable breach of a material contractual obligation and limited to the amount
of the typically foreseeable loss.
13.10 Nothing in this Agreement limits or
excludes the liability of Clicks Converter in the event of culpable injury to
life, limb or health, fraud, fraudulent misrepresentation or fraudulent
misstatement as well as in cases of mandatory statutory liability.
14. TERMINATION AND SUSPENSION
14.1 This Agreement will start on the
Effective Date and continue until terminated in accordance with its terms.
14.2 Either party may terminate the Agreement
on 30 days’ written notice to the other party for any reason.
14.3 Without prejudice to its other rights or
remedies, a party may terminate the Agreement immediately on written notice to
the other party, if:
14.3.1 the other party materially breaches
this Agreement;
14.3.2 the other party is deemed unable to pay
its debts; steps are made to wind up, or appoint an administrator over, the
other party; a third party becomes entitled to appoint a receiver over the
assets of the other party; the other party negotiates with all or a class of
its creditors, or proposes or enters a compromise with such creditors; or any
similar or analogous event occurs.
14.4 Clicks Converter may terminate this
Agreement or Suspend the Publisher, immediately on written notice, if the
Publisher:
14.4.1 does not access the Publisher Account
for a period of six months or if no Commissions have been generated for a
period of six months;
14.4.2 is reasonably suspected by Clicks
Converter to have breached any:
(a) of the warranties at clauses 9.1 and 9.2;
(b) Program Terms of an Advertiser;
(c) part of the Code of Conduct.
14.5 Clicks Converter may terminate this Agreement, immediately on written notice, if the Publisher undergoes a Change of Control.
15. CONSEQUENCES OF TERMINATION AND SUSPENSION
15.1 During any period of Suspension:
15.1.1 the Publisher is not permitted to
access the Interface;
15.1.2 all licenses will be Suspended and the
Publisher shall immediately remove any Advertiser Materials from the Publisher
Service;
15.1.3 Clicks Converter may deactivate any
Links and remove any Advertiser Materials from the Publisher Service (to the
extent it is able); and
15.1.4 no payments will be made to the
Publisher.
15.2 On termination of the Agreement:
15.2.1 all licenses will terminate and the
Publisher shall immediately remove any Advertiser Materials from the Publisher
Service;
15.2.2 Clicks Converter may deactivate any
Links and remove any Advertiser Materials from the Publisher Service (to the
extent it is able);
15.2.3 each party will return or at the other
party’s option destroy all confidential information in its possession within
five Business Days; and
15.2.4 unless terminated by Clicks Converter under
clauses 14.3 or 14.4, Clicks Converter will pay all outstanding Commissions and
Bonuses due to the Publisher;
15.2.5 by Clicks Converter under clauses 14.3
or 14.4 all unpaid Commissions as of the date of termination, or accruing after
the date of termination, shall be forfeited to Clicks Converter irrevocably and
the Publisher hereby waives any right or entitlement to recover such
Commissions and Bonuses from Clicks Converter.
15.3 Termination of this Agreement will not
affect any existing rights or remedies. 15.4 Clauses 1, 2, 5, 6, 7, 10.5, 10.6,
11, 12, 13, 15, 16 and 17 will survive
termination.
16. NOTICES
16.1 Notices given under this Agreement will
be in writing and:
16.1.1 displayed by Clicks Converter on the
Interface;
16.1.2 delivered by the Publisher by hand or
sent by pre-paid first-class post or recorded delivery post to Clicks Converter
at Clicks Converter’s registered office;
16.1.3 delivered by Clicks Converter by hand
or sent by pre-paid first-class post or recorded delivery post to the Publisher
at its notice address set out in the Application Form (or such other address as
may be set out on the Publisher Account); or
16.1.4 sent by Clicks Converter by email to
the Publisher’s notice email address set out in the Application Form (or such
other notice email address as may be set out on the Publisher Account).
16.2 A notice displayed by Clicks Converter on
the Interface will be deemed to have been received at the time of its display
(or if displayed outside business hours, at 9 am on the first Business Day
following display). A notice delivered by hand will be deemed to have been received
when delivered (or if delivered outside business hours, at 9 am on the first
Business Day following delivery). A correctly addressed notice sent by pre-paid
first-class post or recorded delivery post will be deemed to have been received
two Business Days after posting. A notice sent by email will be deemed to have
been received at the time of transmission as shown by the sender’s records (or
if sent outside business hours, at 9 am on the first Business Day
following despatch).
17. GENERAL
17.1 Clicks Converter may change the terms of
this Agreement on 14 days’ notice to the Publisher.
17.2 Certain services Clicks Converter offers
may be subject to additional terms. Such terms will be displayed on the
Interface.
17.3 Clicks Converter may set off any
liability of the Publisher against any liability of Clicks Converter.
17.3 Time for performance of clauses 3.10,
4.6, 7.4.3, 7.4.4, 7.9, 15.1.2 and 15.2.1 are of the essence of this Agreement.
17.4 No party will be liable for any breach of
this Agreement arising from circumstances beyond its reasonable control (a
“Force Majeure Event”). If a Force Majeure Event continues for six
months, the unaffected party may terminate this Agreement by giving 30 days’
written notice to the other party.
17.5 The Publisher may not assign or
subcontract its rights or obligations under this Agreement in whole or part
without Clicks Converter’s prior written consent. Clicks Converter may assign
or subcontract its rights or obligations under this Agreement.
17.6 Nothing in the Agreement constitutes a
partnership or joint venture between the parties, nor constitutes a party the
agent of the other. No party has authority to bind the other.
17.7 A Person who is not a party to this
Agreement will not have any statutory rights under or in connection with it.
17.8 A counterpart of this Agreement executed
and/or transmitted electronically shall be treated as fully binding and with
full legal force and effect.
17.9 This Agreement constitutes the entire
agreement between the parties relating to its subject matter, to the exclusion
of the United Nations Convention on Contracts for International Sale of Goods.
17.10 If the Publisher’s registered office
address (as communicated by the publisher) is located, within the UK, Ireland,
USA or Canada this Agreement is governed by the law of England and Wales and
the courts of England and Wales have exclusive jurisdiction.
17.11 The Publisher is aware that this
Agreement is originally drawn up in English. The Publisher is aware of and
accepts that, in the event of any inconsistencies or differences of
interpretation between the English version and a translated version, this
English version shall always prevail.